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in its nature, full power over the thing to be regulated, it excludes necessarily the action of all others that would perform the same operation on the same thing.”
It may be said then in brief summary of the case of Gibbons v. Ogden, that it first established a rule of interpretation, liberal it may be said ; second, that it undertook to define commerce as being broad enough to cover everything relative to commercial transactions; and third, that Congress not only had the right to assert such prerogatives, but had the right to exclude activities between the States. This case has been cited and quoted in each case before the Supreme Court, involving the power of Congress, and particularly the power of Congress over interstate commerce. It has not only formed the basis of decisions under the Sherman Act, even down to the Tobacco case and Standard Oil case, but it has been the basis for Congress to prescribe safety appliances on railway trains, regulating the liability of the employer to the employe, for injuries sustained, and the distribution of the proceeds recovered. It is impossible to fully appreciate the effect that this decision has had upon establishing the power and influence of the Federal Government. As learned a lawyer as Chancellor Kent had taken a different view of the proposition in the courts of New York. It would have been an easy matter for the Chief Justice to have followed the opinion of the learned Kent and to have there adopted the propositions that would have sustained the courts of New York had he given such an inclination to interpretate. Yet he made the announcement that commerce consisted not only of buying and selling, but all that is incident to commerce.
When the case of Gibbons v. Ogden was decided, there was ample opportunity for the Court to have taken either view as to the powers of the Federal Government to regulate interstate commerce. It would have been an easy matter for the Chief Justice to have accepted the conclusions of the learned Cancellor Kent, whose ability and character were safe enough guarantees to justify the adoption of his views. But he didn't. His vision was broader and more comprehensive, and he went the way of strengthening the power of the Federal Government.
What would have been the effect had he followed the opinion of Kent, would be difficult for us to portray. Certain it is that in the years that came after, there would have been an unworkable rule.
In his interpretation of the Constitution, and particularly of this case, Marshall seemed to have an insight into the future beyond the insight of mortal man. He manifested not only capacity as a judge, but the mental grasp of a statesman. He had even more than the imagination of a poet—he had the vision of a prophet. The declaration of the rule seems as if it might have been by inspiration. In his mind's eye, he seemed to have beheld the marvelous commercial development of the century that was to follow, and to have arisen to the exigencies of the picture his eyes beheld. He seems, from some elevated place, to have a perfect vision of the land of Promise—a land which he clearly saw, and almost divinely understood, but into which he was never to be permitted to place his foot.
The length of time that I have devoted to the discussion of the cases of Marbury v. Madison, the trial of Burr, and the case of Gibson v. Ogden, forbids any extended discussion of the other cases.
There remains, however, another case, the opinion in which was delivered by Chief Justice Marshall, that must always be discussed in discussing his effect upon the jurisprudence, and you might say, the statesmanship, of the county, and that is the case commonly known as the Dartmouth College case.
It would never be of any particular interest to this Association or to any persons generally to restate to any degree the history and nature of the litigation. Insofar as its effect upon the jurisprudence of the country is concerned, and the limitations of the power of the State are concerned, it is only necessary to say that it invoked the interpretation of the clause the Constitution of the United States that placed prohibition upon the States to the effect that they should not pass any law impairing the obligation of contract.
It is well known that under the original charter of Dartmouth College, the trustees of that institution were invested with the express authority of self perpetuation. It is also well known that the State within which the institution was located, passed statutes for the purpose of changing the method of electing trustees, and transfer the right of election of successors from the Board of Trustees themselves. The Supreme Court of the State of New Hampshire held this to be a proper exercise of the powers of the State, and that the statute did not violate any constitutional rights of the trustees. The case went to the Supreme Court of the United States, and was argued with great ability by brilliant counsel, noteworthy among whom was Daniel Webster. Many questions were discussed before the Court, but the opinion of the Court was based upon the following propositions as I understand it:
First, that clause of the Federal Constitution prohibiting a State from passing a law in violation of a contract, applied to contracts made between citizens and the sovereign, as well as between citizens themselves.
Second, that a charter granted by a State to private persons was something more than a royal prerogative that might be revoked at the pleasure of the sovereign. It was a contract between the sovereign and the incorporators, and being such a contract, fell within the inhibition or prohibition of the Federal Constitution.
Third, this being true that the sovereign State could pass no law that violated the provisions and terms of this charter.
Fourth, the right to perpetuate themselves was a right under this contract, and such a right as courts would protect.
Finally in view of these principles, the statutes of the legislature were in violation of the Federal Constitution and void.
The effect of the Dartmouth College case was far beyond the effect upon educational institutions, and the rights of trustees to perpetuate themselves. Out of it was developed the doctrine applicable to all charters granted all corporate institutions in all the States of the United States, to the effect that the State having once granted a franchise without limit as to time, or having granted as to the limits of time, had granted such immunities and privileges during that period, that all the power of the State government was exhausted over these things. No franchise could be revoked or repealed. No immunities could be modified or withdrawn. Perpetual rights, subject only to the exercise of the power of eminent domain, were vested
in the grantees. That this doctrine startled the lawyers of the time, cannot be doubted.
Under the English law, that Parliament could revoke a franchise was beyond dispute. Parliament was supreme. But here we have a Federal court staying the hand of every sovereign State in a manner that perhaps had never been considered before, and based upon an interpretation of a clause of the Constitution that many considered to have no application to anything except contracts between private individuals.
I am not proposing to discuss the wisdom or unwisdom of the soundness or unsoundness of this position; but am merely stating its effect upon the country so far as the development of corporate power is concerned.
It is manifest that the purport of this opinion was not fully appreciated for many years after it was announced, for it was only in the past forty years or so that the State governments begun to guard against it by constitutional provisions, and special reversations by enactments.
Mr. Justice Story in his opinion in the Dartmouth College case, had pointed out that it was entirely feasible for the State to guard against these results insofar as any future charters were concerned by reserving in the grant the right of repeal or modification. And we find in the middle of the century, and on down to the seventies, frequent constitutional provisions to this effect.
Take the State of Tennessee for example. It was apparent that the full effect of this opinion was not appreciated much before the Constitution of 1870. For a while we find a few reservations of the right to modify or repeal charters prior to this time, but not changing the well established principle of our law until the Constitution of 1870 was adopted. As a result of that for example there is still in the State of Tennessee many striking illustrations. Certain railroads have been exempt from taxation. Stock in certain railroads have been exempt. Impartial franchises have not only been vested in railroads, but in turnpike companies. It is perhaps for his opinion in this case that modern publicists most severely criticize the Chief Justice.
But on the other hand it may be said that this decision in applying this clause of the Constitution in reference to con
tracts, to contracts that were made with the government, was entirely in line with the general policy of all his decisions. that there should be no principle announced that did not govern the people as a whole as against individuals, that governed individuals among themselves. He was not responsible for the broad clause upon this subject in the Constitution. He seemed merely to be considering the proposition of limitations of government, placed upon government as well as upon the people, and that the courts had nothing to do but to enforce such limitation when it was invoked.
It may be said finally that there can be no doubt that Marshall has made his impress upon the government of this country such as no other man has made either in peace or in war. He stands as a strange, peculiar figure, with no great opportunities for learning, and with perhaps no very great accomplishments prior to his elevation to the bench.
He certainly stands out as a man with dominant intellectual force, marvelous ingenuity, clear insight and vision into the necessities of the situation, and a clearness and power of expression that has never been surpassed, and never equalled by any man upon the American bench. He possessed a marvelous intellectual power, great dignity of character, and an exalted courage that made him decide a case regardless of alignments on either side of the controversy.
He will never occupy the stage before the public gaze as Jefferson will, or as Washington will, or as Jackson will, or as Lincoln will; but before an audience of the thoughtful students of American history he will always appear in a stellar role not inferior to any of these great men.
Mr. L. D. Smith:—Mr. President, it affords me very great pleasure on this occasion to offer this resolution, that we offer the vote of thanks of this Association to our Brother Keeble for this most eloquent paper that he has read before us on this occasion.
Motion seconded and carried, by a rising vote.
The President:~Mr. Keeble, I convey to you the earnest thanks of this Association for that most learned paper. We are greatly your debtor.